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Towards an EU regulatory framework on Third-Party Litigation Funding (TPLF)
As third-party litigation funding (TPLF) rapidly expands across Europe, the European Justice Forum has released a new policy brief outlining a clear way forward: a harmonised EU regulatory framework to safeguard judicial systems, protect consumers and businesses, and support the EU’s economic resilience and competitiveness.
Building on international best practices and independent research, the paper presents a balanced, four-pillar approach to contribute to the policy debate on how to best regulate TPLF:
- Transparency: Mandatory disclosure of funders, funding sources, and redacted agreements to all parties, with unredacted versions to courts. Funders should be subject to authorisation, registration, and supervision.
- Protection of claimants’ rights: joint liability for adverse costs, minimum capital requirements, no funder control over case strategy or outcomes, and minimum payouts to claimants with caps on funder and intermediary fees.
- Ethical standards: Prohibition of funding arrangements with conflicts of interest, and fiduciary duties requiring funders to act in the best interests of claimants/beneficiaries.
- Harmonized regulatory framework: Consistent application of these rules across all mass litigation and arbitration to prevent circumvention and ensure legal certainty in the EU.
These recommendations reflect growing political momentum, supported by the European Parliament’s 2022 resolution and calls from European industry groups, and are grounded in recent research by ECIPE, the European Law Institute , and EJF itself.
Ultimately, EJF’s brief underscores that responsible regulation can both protect consumers and judicial integrity and preserve Europe’s legal and economic systems. By acting now, the EU can set a global standard for litigation funding that strengthens, rather than compromises, access to justice.
Read the full policy brief below.
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Roundtable Dialogue on Mass Litigation in Europe: Exploring the Role of Third-Party Litigation Funding (TPLF)
On 26 March, BusinessEurope, Cefic and EJF co-hosted a high-level roundtable in Brussels to discuss the growing role of TPLF in Europe’s mass litigation landscape. The event brought together legal experts, EU policymakers, industry leaders, and civil society representatives for an insightful discussion on the risks and opportunities presented by this fast-growing practice.
The discussion was timely. A recent study from the European Centre for International Political Economy (ECIPE) estimates that mass litigation could cost EU businesses up to €84.8 billion in private enforcement expenses. Moreover, the High Level Forum Meeting of the EU Commission’s “Justice for Growth” initiative took place a day later.
While participants acknowledged that TPLF can improve access to justice, especially in cases where individual claims may not be economically viable, they also highlighted significant risks, such as conflicts of interest between funders and claimants or beneficiaries and the general commercialisation of justice.
The discussion revealed a strong consensus that time for action is now. While some stakeholders (particularly Member States and consumer organisations) remain cautious, there was a broad agreement that EU-level regulation is necessary to ensure fair practices and prevent abuse – echoing the findings from the European Commission’s recent mapping study, in which 54% of respondents supported EU-level action.
In particular, the participants of the roundtable called attention to the need for safeguards, such as mandatory transparency on funding arrangements to independent and knowledgeable public bodies for effective control avoiding conflicts of interest, setting a minimum portion of redress awards to be handed to beneficiaries, capital adequacy and oversight mechanisms to ensure funders can fulfil their liabilities.
Overall, the event reaffirmed the need for the EU to take a leading role in this area, aiming at striking a fair balance between enhancing access to justice and protecting Europe’s economic competitiveness.
For further information, access the meeting report below.
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ECIPE study “The Impact of Increased Mass Litigation in Europe”
Mass litigation is on the rise across Europe and is reshaping the legal and economic landscape, with significant implications for businesses and consumers.
A new study developed by ECIPE and commissioned by EJF, “The Impact of Increased Mass Litigation in Europe”, examines how this trend is evolving, its potential economic consequences and presents policy recommendations to ensure fairness and balance in collective actions. For the first time, the macro-economic implications of mass claims were also reviewed.
The key findings can be summarised as follows:
- Collective action cases have surged across the EU, particularly in 2015 and again in 2020 onwards, with countries like the Netherlands, Portugal, Germany, and Slovenia reporting higher volumes. The rise of Third-Party Litigation Funding (TPLF) is contributing to this trend.
- Mass litigation entails substantial costs for businesses, leading to higher settlement costs, insurance premiums and compliance burdens, which can raise consumer prices and potentially hinder innovation, particularly with the introduction of private rights of action in EU regulations.
- Countries like the Netherlands, Portugal, and Germany have experienced a higher volume of mass litigation, partly due to their efficient judicial systems and institutional frameworks that facilitate collective actions. In contrast, Denmark, Lithuania, and Sweden have implemented safeguards to reduce the risk of unfounded litigation.
- A scenario-based analysis suggests that depending on the level of growth in mass litigation, costs could vary widely, with the high-growth scenario predicting private enforcement costs of up to €84.8 billion, market capitalisation losses for innovative companies up to €46.5 billion, and an increase in litigation costs as a share of claim value to 27.1%.
In light of these challenges, the report provides some recommendations to improve legal fairness and efficiency which, from EJF, we echo:
- Shifting from an opt-out to an opt-in system, enhancing transparency in third-party litigation funding (TPLF), and reinforcing the loser pays principle to discourage speculative lawsuits.
- Addressing inconsistencies across national legal systems to reduce forum shopping and ensure more predictable and balanced enforcement mechanisms.
- Applying stricter criteria for forming a qualified entity to file collective action cases and excluding ad hoc entities or private persons as claimants.
- Strengthening Ombuds Bodies and other ADR mechanisms to provide a cost-effective and efficient alternative to mass litigation for businesses and consumers.
The report concludes that the combination of the EU's burdensome and strict regulatory framework with increased private enforcement carries significant economic costs for businesses and for society. It is therefore crucial that policymakers carefully consider the long-term implications of an increasing mass-action litigation in Europe. The proposed measures are an important contribution to ensuring a better balance between justice, fair compensation for consumers and adequate protection for companies from opportunistic lawsuits, thus strengthening the EU's competitiveness.
For further information, access the full report and EJF’s cover letter below.
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European Justice Forum signs joint business statement on TPLF
EJF joined business associations for the need to regulate private Third-Party Litigation Funding (TPLF) at the EU level due to its potential as a for-profit model to prioritize financial gains over claimants' interests, leading to abusive litigation and unfair settlements.
The document emphasizes the lack of regulation and transparency in TPLF, contrasting it with the stringent oversight and competition in other sectors, and notes the risks of excessive litigation undermining public trust in judicial systems. The European Parliament's 2022 resolution on responsible litigation funding is recommended as a foundation for creating safeguards.
The statement concludes by urging EU-level regulation to maintain a fair, transparent, and balanced legal environment that supports innovation and competitiveness in the EU.
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European Justice Forum Members Meeting November 2024
On 13 November, EJF hosted its second Members Meeting of 2024, this time in Paris, convening participants both in-person at the office of one of EJF’s members, Swiss Re, and virtually. This gathering featured a full agenda addressing pressing legal and regulatory topics and facilitated insightful discussions between the participants.
The event started with a casual luncheon, letting members to connect informally before the official program began. The meeting then opened with an update on EJF activities, including ongoing projects and outreach efforts, alongside a voting session for key organisational initiatives. EJF is developing important new ideas around fostering competition (a) between litigation funders offers, (b) public and other sources of collective action funding as well as (c) more competition between public and private enforcement in order to bring litigation costs down.
Following this, experts shared their latest insights and lessons learned from the transposition of the Representative Actions Directive (RAD), with a special focus on the situation in France, Spain and the results of a recent Class Action Survey 2024.
Later sessions explored the macroeconomic implications of mass actions across Europe, bringing to the forefront the broader effects on regulatory frameworks and market stability. Key voices, including Isabella Wijnberg (Houthoff), Marianne Bardant (LEEM), and Oscar Guinea (ECIPE), presented thought-provoking materials, which sparked debates during the panel discussions.
After a networking break, the conversation shifted to emerging litigation risks, focusing particularly on the regulation of Third-Party Litigation Funding (TPLF) and the challenges posed by AI. While Moya Stevenson (Swiss Re) presented the landscape of potential areas of future mass litigations, Prof. emerit. Chris Hodges (Oxford University) shared his perspectives, offering ways to effectively address these evolving topics.
The event concluded with a forward-looking discussion on EJF’s Strategy 2025 and beyond, highlighting upcoming EU regulatory priorities, national advocacy efforts, and new projects aimed at strengthening evidence-based decision-making in civil justice. Participants from diverse professional backgrounds contributed with their insights to feed into the dialogue.
The meeting ended with a dinner, providing an opportunity for attendees to create connections and reflect on the day’s discussions.
On behalf of the EJF team, we extend our heartfelt thanks to everyone who participated and contributed to the event's success.
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European Justice Forum Members Meeting
On 12 June, EJF hosted its first Members Meeting of 2024, bringing together participants both in-person and virtually. The event, held at the offices of our legal partner Stibbe in Amsterdam, featured a robust agenda focused on legal and regulatory topics. The meeting brought together a vibrant mix of industry professionals for an afternoon filled with debates and networking.
The event began with a luncheon, allowing early arrivals to network and engage informally before the formal sessions began. The agenda included insightful presentations and discussions on key files such as the transposition of the Representative Actions Directive (RAD), the impact of the Product Liability Directive (PLD), insights about Third Party Litigation (TPLF), the effects of mass litigation in Europe, and outcomes of European Elections. Each session was led by top experts, including Moya Stevenson, Prof. Jeroen Kortmann, Dr. David Markworth, Isabella Wijnberg, Fredrik Erixon, Herbert Woopen, Ekkart Kaske and others, who framed and sparked lively discussions. Attendees reacted with their own perspectives and questions, making the sessions dynamic and interactive.
The meeting facilitated the exchange of ideas, allowed the participants to learn about the problematics surrounding access to and delivery of civil justice in a more holistic manner and fostered the creation of new professional relationships.
The event concluded successfully, with many attendees staying for the networking dinner. A big thank you to everyone who joined us and contributed to the insightful debates. With a view to promote balanced, transparent and efficient access to civil justice, EJF will continue offering valuable platforms for members to connect and enhance their professional growth.
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ADR regulatory process update
On 17 October 2023, the Commission adopted a proposal for a directive amending Directive 2013/11/EU on alternative dispute resolution for consumer disputes, as well as Directives (EU) 2015/2302, (EU) 2019/2161 and (EU) 2020/1828.
The proposal entails several key changes:
- It extends consumer rights to non-contractual and pre-contractual situations, including digital content and services, and allows for additional dispute resolution categories. It removes geographical establishment requirements for traders, defining cross-border disputes between consumers and traders in different EU states.
- The changes allow bundling similar cases into one procedure with consumer consent, impose a 20-day response deadline for traders to ADR requests, and permit Member States to mandate trader participation in ADR.
- It ensures complaint traceability and support for vulnerable consumers, including non-digital procedures upon request. Parties have the right to human review of automated ADR processes.
- Improved information access and assistance for cross-border disputes are mandated, with ADR contact points designated by Member States.
To enhance trader participation, amendments proposed by the IMCO Committee make participation mandatory for certain air carriers and extend the scope to include pre-contractual obligations.
To boost consumer awareness, amendments aim to improve the impartiality and quality of ADR procedures, requiring human review of automated processes and general understanding of private law in cross-border cases by ADR personnel.
On 13 March, the Plenary endorsed the report as Parliament first reading position with 605 votes in favour, 7 votes against and 13 abstentions. In the Council, it has been referred to the Working Party on Consumer Protection and Information, which debated it for the last time on 22 April.
It is uncertain whether the ADR will be adopted before the European Parliament elections in June. Any institutional change in the midst of this process could influence the regulatory process and final result of the file.
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Trialogue: CS3D passing Council agreement
On 15 March 2024, the Belgian Council Presidency successfully brokered an interinstitutional agreement on the Corporate Sustainability Due Diligence Directive (CS3D), presenting a compromise text that garnered the required Qualified Majority Voting. It underwent significant revisions to address the regulatory burden or alleviate it.
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EJF organises TPLF event with AmChamEU - "Access to justice but not for profit"
Legal experts, policymakers, and representatives from industry and consumer side as well as academia gathered on the 1st of December for an insightful discussion on TPLF organized by EJF in collaboration with the American Chamber of Commerce to the European Union. The event delved into the crucial aspects of effective and fair delivery of justice, proportionality, sensible regulation, oversight, and transparency in the context of TPLF.
read more EJF organises TPLF event with AmChamEU - "Access to justice but not for profit"
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EJF Collaborates in the Joint Industry Statement Concerning PLD Proposed Revision
The European industry is deeply concerned about the proposed revision of the PLD. EJF and other European organizations have published an Industry Statement stating that the proposed revision, as it stands, could disrupt the balance between consumer protection and business interests, potentially leading to a culture of litigation in Europe. This imbalance would not only affect companies but also consumers: innovations could become too risky, and rising legal cost exposure might result in a cost spiral making products and services more expensive (social inflation).
The proposed changes to the directive may eliminate existing safeguards and create a litigation-friendly environment, increasing the legal risks and complexity for European businesses, especially smaller companies. The primary beneficiaries of these changes would be lawyers and third-party litigation funders, not consumers.
Moreover, there are questions over the expansion of the Directive to cover digital products, shifting the burden of proof, and its disclosure of evidence provisions, all of which pose significant challenges for businesses. We urge European policymakers to reconsider these measures and strike a balance that modernizes product liability without undermining innovation and legal certainty.
Read the full statement here.
read more EJF Collaborates in the Joint Industry Statement Concerning PLD Proposed Revision